A Rights-based Approach to Oil Spill Investigations: A Case Study of the Bodo Community Oil Spill in Nigeria

GELS.2020.0005 28..54A Rights-based Approach to Oil Spill Investigations: A Case Study of the
Bodo Community Oil Spill in Nigeria
Smith I. Azubuike* and Ondotimi Songi**
Abstract: Oil-bearing local communities in resource-rich developing countries suffer human rights violations after an oil spill. The violations arise as a result of impacted water sources, destruction of the environment and access to food, affected economic livelihood, etcetera. In the oil spill investigation process, the existing laws do not incorporate an assessment of the human rights impacts of the spill, to forestall subsequent human rights infringement when another oil spill occur. The Bodo community oil spill in Nigeria is a case in point. This article utilises a Human Rights Impact Assessment (HRIA) framework to examine the oil spill investigation regime in Nigeria, regarding the Bodo community oil spill. The essence is to identify the flaws in the investigation process, assist in holding duty-bearers accountable to their human rights obligations and responsibilities while empowering local communities as right-holders in the oil spill investigation process. This article seeks to incorporate the HRIA framework into the oil spill investigation regime to prevent further human rights violations post-oil spill. It notes that the application of the core procedural elements of HRIA – DM-PACT - is fundamental to improving the human rights experience after an oil spill. As a result, the framework could be mainstreamed into policy, legal, regulatory processes and management systems to enhance restorative and energy justice post-spill and to enhance post-spill or accident investigation to improve the human rights experience in the energy sector.
Global Energy Law and Sustainability 1.1 (2020): 28–54 DOI: 10.3366/gels.2020.0005 © Edinburgh University Press www.euppublishing.com/gels
* Dr Smith I. Azubuike holds a PhD in Energy Law and Policy from the Centre for Energy, Petroleum & Mineral Law & Policy, University of Dundee and is the Africa Regional Coordinator at the Extractives Hub, CEPMLP, University of Dundee. Smith is a tutor in English Contract Law and English Criminal Law and Evidence at the School of Law, University of Dundee. He is a Barrister and Solicitor of the Supreme Court of Nigeria. Correspondence email: [email protected] ** Ondotimi Songi is a Ph. D Candidate at the Centre for Energy, Petroleum & Mineral Law & Policy, University of Dundee. He is a Barristers and Solicitors of the Supreme Court of Nigeria.
Keywords: Oil spill; investigation; human rights; energy justice; environmental Justice; rights-based approach; Bodo Community; Nigeria; John Ruggie; corporate accountability; due diligence.
1. INTRODUCTION Oil-bearing communities in hydrocarbon-rich developing countries are the first recipients of human rights infringements when an oil spill occur. Nigeria’s Niger Delta (ND) is one of the usual reference locations for discussions on environmental pollution and its impact on local communities, mainly as a result of the activities of oil and gas companies operating in the region.1 The ND trumps the Gulf of Mexico when it comes to oil spill occurrences with about 9 to 11 million barrel of oil spilt as against the Gulf of Mexico’s official estimates of about 4.1 million barrels of spilt oil.2 Unlike the Gulf ofMexico, the oil spills in the ND remain largely not cleaned-up. The significant occurrence of oil spills suggests the non-application of internationally recognized standards to prevent oil spills even though Nigerian law requires companies to adopt ‘good oil field practices’ such as standards of the American Petroleum Institute for all petroleum production and transportation operations.3 The law requires that in the event of an oil spill, petroleum companies should take ‘prompt steps’ to initiate clean-up operations within 24 hours of the discharge.4
The less obvious impact of oil spills are the human rights impacts that local communities suffer from following an oil spill.5 The contamination of land, surface and groundwater, and sedimentary contamination leaves local farmers without food and local fishermen/fisherwomen without fishes.6 All these
1. Victoria E Kalu and Ngozi F Stewart, ‘Nigeria’s Niger Delta Crises and Resolution of Oil and Gas Related Disputes: Need for a Paradigm Shift’ (2007) 25(3) Journal of Energy and Natural Resources Law 247.
2. Richard Steiner, ‘Double standard: Shell Practices in Nigeria Compared with International Standards to Prevent and Control Pipeline Oil Spills and the Deepwater Horizon Oil Spill’ (Friends of the Earth Netherlands, November 2010) <http://oasis-earth.com/Resources/ Milieudefensie%20rapport%20Shell%20Double%20Standard%20L%2010-50-4435%20LR. pdf > accessed 12 June 2019.
3. The Mineral Oils (Safety) Regulations of 1962 made pursuant to the Nigerian Petroleum Act 1969, Cap P10, Laws of the Federation of Nigeria (LFN), 2004.
4. Department of Petroleum Resources (DPR), Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) as revised in 2002,148 states, among other things that: ‘clean-up shall commence within 24 hours of the occurrence of the spill’.
5. Eloamaka Carol Okonkwo, ‘Environmentally displaced persons in the Niger Delta: Challenges and Prospects’ in Jordi Jaria I Manzano, Nathalie Chalifour and Louis J. Kotzé (eds), Energy, Governance and Sustainability (Edward Elgar Publishing Ltd 2016).
6. Zelda Anne Elum, Keletso Mopipi and Adanna Henry-Ukoha, ‘Oil Exploitation and its Socioeconomic Effects on the Niger Delta Region of Nigeria’ (2016) 23(13) Environmental Science and Pollution Research 12880-9.
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impacts on the right to a clean and healthy environment, the right to food, the right to portable water, entitlement to an adequate standard of living, the right to earn a living via work, and the right to health. The result is an impact on the livelihood of local communities as they cannot survive without food and water. These human rights impacts call for active public participation in the oil spill investigation process to ensure environmental and energy justice for local communities. Environmental justice7 seeks to compensate for harm to man and the environment8 while energy justice,9 using the element of procedural justice, ensure the involvement of people in decision-making procedures around energy system infrastructures, technologies10 and processes such as in oil spill investigation to provide more equitable and just energy policy outputs. Entrenched in environmental justice is the principle that disadvantaged communities should not be subject to disproportionate ecological impacts.11
Accordingly, an oil spill investigation (OSI) should be conducted appropriately, as a flawed OSI process would not only hamper energy and environmental justice but would further aggravate the human rights impacts that local communities will encounter. Interestingly, the determination of the cause(s), extent and effects of an oil spill is the duty of government regulators, in collaboration with other stakeholders. However, evidence shows that government investigators lack the technical capacity to undertake such
7. The United States Environmental Protection Agency defined environmental justice as ‘the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies’. Available from <https://www.epa. gov/environmentaljustice> accessed 20 August 2019.
8. Kerri Woods, ‘What does the language of Human Rights bring to campaigns for Environmental Justice’? (2006) 15(4) Environmental Politics 572; Harry M Osofsky, Kate Baxter-Kauf, Bradley Hammer, Ann Mailander, Brett Mares ‘Environmental justice and the bp deepwater horizon oil spill’ (2012) 20(1) New York University Environmental Law Journal 99. Environmental justice aligns with restorative justice which seek to repair the harm done to people. In this regard it could be applied to post energy accidents where the oil company is responsible for the accident as is the case with Shell in the Bodo oil spill.
9. Raphael J Heffron and Darren McCauley, ‘The Concept of Energy Justice across the Disciplines’ (2017) 105 Energy Policy 658–667. Energy Justice has three fundamental elements – procedural justice, distributional justice and recognitional justice. Procedural justice relates to our discussion in this paper as it deals with the ability of people to be involved in decision-making procedures around energy system infrastructures, technol- ogies, and procedures.
10. Ramazan Sari, Ebrua Voyvoda, Max Lacey-Barnacle, Eminegul Karababa, Cagatay Topal and Demet Islambay, (2017) ‘Energy Justice: A Social Sciences and Humanities Cross-cutting Theme Report’ (SHAPE ENERGY Technical Report, 19 January 2018) <https://shapeenergy.eu/index.php/publications/> accessed 23 May 2019.
11. David Schlosberg, ‘Theorising environmental justice: the expanding sphere of a discourse’ (2013) 22(1) Environmental Politics 37–55.
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an investigation.12 The result is that the oil and gas companies that are often answerable for the oil spill lead the oil spill investigation. The practise adopted in both the Deepwater Horizon accident and the Fukushima disaster investigation could help to promote human rights post-spill in Nigeria. Disclosure and participation form part of the core elements of the HRIA
framework, adopted in the Deepwater Horizon13 and Fukushima accidents investigations.14 Through public participation and site visits, the Fukushima Commission noted that ‘residents in the affected area are still struggling from the effects of the accident. They continue to face grave concerns, including the health effects of radiation exposure, displacement, the dissolution of families, disruption of their lives and lifestyles and the contamination of vast areas of the environment. The Commission concludes that the government and the regulators are not fully committed to protecting public health and safety; that they have not acted to protect the health of the residents and to restore their welfare’. These findings enabled and canvassed support for energy and environ- mental justice in the Fukushima disaster, which is essential in promoting human rights in the energy sector. In the Nuclear energy sector, the liability regime facilitates environmental justice as it ensures that potential victims will be compensated promptly and efficiently after a nuclear accident.15
The focus of this paper is to promote procedural and environmental justice to improve the human rights experience and to forestall further rights violation when an oil spill occurs. This article utilises an HRIA framework to examine the OSI regime in a developing country such as Nigeria. The HRIA framework will assist in identifying the human rights flaws in the current practice and suggests measures that can support in holding duty-bearers accountable to their human rights obligations and responsibilities while empowering local communities as right-holders in the OSI process. The basis for choosing Nigeria and Bodo community as a case study arise from the many oil spill occurrences and unattended human rights concerns following the oil spills. This article applies the various core procedural elements of the HRIA
framework. It notes that the application of the core procedural elements of
12. Akpofure Rim-Rukeh, ‘Oil Spill Management in Nigeria: SWOT Analysis of the Joint Investigation Visit (JIV) Process’ (2015) 6 Journal of Environmental Protection 259–271.
13. National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, ‘Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling’ (Report to the President, January 2011) <https://www.govinfo.gov/content/pkg/GPO-OILCOMMISSION/pdf/GPO- OILCOMMISSION.pdf> accessed 30 May 2019.
14. The National Diet of Japan, ‘The official report of the Fukushima Nuclear Accident Independent Investigation Commission’ 2012, available from <https://www.nirs.org/ wp-content/uploads/fukushima/naiic_report.pdf> accessed 20 June 2019.
15. Raphael J Heffron, Stephen F Ashley, William J Nuttal, ‘The global Nuclear Liability Regime post Fukushima Daiichi’ (2016) 90 Progress in Nuclear Energy 1–10.
A Rights-based Approach to Oil Spill Investigations
HRIA – DM-PACT - is fundamental to improving the human rights experience and promoting energy (procedural justice)16 and environmental justice after an oil spill has occurred. This is because, energy justice, just like the HRIA framework, gives the impacted community a voice in seeking for restorative or environmental justice.
2. ASSESSING THE LITERATURE ON OIL SPILL INVESTIGATION AND HUMAN RIGHTS IN NIGERIA
There is a core set of leading texts about the oil spill and environmental degradation in the Niger Delta of Nigeria. Some of this literature examines the impact of an oil spill on oil-bearing communities. One of the leading articles in this area is Nwilo and Badejo’s17 article, which provides a historical background to Nigeria’s petroleum development, identifies the spill incidents and the impact on the coastlines and local communities. It also advanced a new trajectory for oil spill management to monitor coastal communities in Nigeria. A related article is the UNDP report18 which assesses the human development issues in the Delta and examines the social, environmental and economic challenges associated with petroleum extraction in the Niger Delta while also proffering solutions to those issues. ZA Elum and others19 explore the adverse effects (destruction of wildlife,
biodiversity loss, air and water pollution, degradation of farmland and damage to aquatic ecosystems) of oil exploration on the Niger Delta, with a call on oil companies to modernise operating infrastructure and equipment to prevent avoidable oil spillages. Similarly, J Nriagu and others20 focused on the health implications that follow oil exploration in the Niger Delta. NG Ikpeze21
examines the nexus between oil exploration, the environment and human rights. He emphasises the impacts of oil exploration on the environment and human rights and the need to protect human rights. Ikpeze concludes with a call to protect the environment through legislation and other means. Other literature provides insights on how HRIA could be conducted using
rights tools, but none of the documents or articles utilised the HRIA framework
16. Raphael J Heffron, Anita Rønne, Joseph P Tomain, Adrian Bradbrook and Kim Talus, ‘ATreatise for Energy Law’ (2018) 11 Journal of World Energy Law and Business 34–48.
17. Peter C Nwilo and OT Badejo, ‘Oil Spill Problems and Management in The Niger Delta’ (2005) 2005(1) International Oil Spill Conference Proceedings 567–570.
18. United Nations Development Programme (UNDP), ‘Niger Delta Human Development Report’, Abuja: UNDP, 2006.
19. ZA Elum, et al, (n 6). 20. Jerome Nriagu, Emilia A. Udofia, Ibanga Ekong, and Godwin Ebuk, ‘Health Risks
Associated with Oil Pollution in the Niger Delta, Nigeria’ (2016) 13(3) International Journal of Environmental Research and Public Health 346.
21. Nnamdi George G Ikpeze, ‘The Environment, Oil and Human Rights in Nigeria’, (2011) 2 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 88.
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to analyse oil spill investigation and the post-spill impact of oil spill on human rights. One report from Amnesty International (AI)22 highlights the many oil spills in Nigeria and the effect on the environment of the Niger Delta. Another AI23 report still focused on oil pollution in Nigeria and its impact on the environment and human rights of local communities. The AI report relied on the article examined the human rights implications of the spill on local communities in Ogoniland and the systemic flaws in the oil spill investigations regime in Nigeria. The report did not, however, utilise an HRIA framework to state how governments and corporations could manage post-spill human rights impacts in the energy sector. Our paper fills this gap by exploring the HRIA framework to solve the post-oil spill human rights impacts on local communities to improve the human rights experience during the OSI process. The literature on human rights impact assessment does not provide how the
human rights experience could be improved upon during an OSI to forestall further rights violations and ensure restorative and procedural justice for local communities in the OSI process. In this respect, our article is considered a fundamental addition to the literature on the subject as it provides a framework that will prevent further human rights violation post-spill and assist in investigating accidents or disasters in the energy industry in general, in achieving restorative justice. Applying the core procedural elements of the HRIA framework, the article advanced a pathway to improve the human rights experience post-spill, which also facilitates environmental democracy.
3. THE HUMAN RIGHTS IMPLICATIONS OF OIL SPILL Human rights are rights that inure to a person arising from his existence on earth.24 The usage of ‘human rights’ here entails entitlement. These rights include but are not limited to the right to life, healthy environment, food, and the right to work and earn a living.25 The socio-economic and environmental impacts of oil pollution are extensive. They range from loss of biodiversity, damage to aquatic ecosystems, air and water pollution, groundwater contamination, destruction of wildlife and degradation of
22. Amnesty International, ‘Nigeria: Hundreds of Oil Spills Continue to Blight Niger Delta’ (Amnesty International. 19 March 2015) <https://www.amnesty.org/en/latest/news/ 2015/03/hundreds-of-oil-spills-continue-to-blight-niger-delta/> accessed 23 June 2017.
23. Amnesty International, ‘Nigeria: Petroleum, Pollution and Poverty in the Niger Delta’, London, 2009.
24. Jack Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Cornell University Press 2013) 7–8; see also Nnamdi George Ikpeze, ‘The Environment, Oil and Human Rights in Nigeria’ (2011) 2 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 88.
25. Ibid, 8.
Apart from environmental impacts, a recent study has shown that oil pollution has severe effects on psychological and pathological health of oil-bearing communities.27 Accordingly, the enjoyment of nature-given rights is impaired by oil pollution, particularly in the areas discussed.
3.1. The right to food The right to food is recognised under the International Covenant on Economic Social and Cultural Rights (ICESCR),28 and this means that food has to be available and accessible to citizens from productive land and natural resources.29 Within the context of the right to food, governments are required ‘to protect and improve existing food sources, and should not allow food sources to be destroyed or contaminated by private persons or MNCs, thereby preventing peoples’ effort to feed themselves’.30
Food provides livelihood and self-sufficiency for traditional communities, and this can be at risk through the loss of natural sources to food occasioned by oil pollution.31 The African Commission in the Ogoni case stated that ‘The African Charter on Human and Peoples’ Rights (ACHPR) require and bind States to protect and improve existing food sources and to ensure access to adequate food for all citizens.32 In the Ogoni case, the African Commission observed that Nigeria had violated the right to food by allowing oil companies to destroy food sources. The UN Committee on Economic Cultural and Social Rights (CESCR) has stated that food must be ‘free from adverse substances’.33 The numerous gas flares and oil spills damage farmlands, crops, fishing rivers, and lack of proper environmental remediation has impacted adversely on food security.
26. ZA Elum, et al, (n 6). 27. J Nriagu, et al, (n 20). 28. International Covenant on Economic, Social and Cultural Rights (adopted 16 December
1966, entered into force 3 January 1976)999 UNTS 3 (ICESCR) art 11. 29. Commission on Economic, Social and Cultural Rights (CESCR), General Comment No 12
(1999) on the right to adequate food (Article 11 of the International Covenant on Economic, Social and Cultural Rights, E/C 12/1999/5), para 12.
30. The Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria (155/96), Decision of the 30th ordinary session of the African Commission of Human and Peoples’ Rights, Banjul, 13–27 October 2001, para 68 <http://www1.umn.edu/humanrts/africa/comcases/155-96b.html> accessed 10 February 2014.
31. Desiree Abraham and Yann Wyss, ‘Guide to Human Rights Impact Assessment and Management’, Road-Testing Draft, June 2007, 76.
32. SERAC and CESR v. Nigeria, (n 30) para 68. 33. CESCR, General Comments No 12 (n 29) para 8.
Global Energy Law and Sustainability
3.2. The right to work and an adequate standard of living The ICESCR provides for the right to gain a living through work.34 The right to an adequate standard of living is also captured under Article 11 of the ICESCR and under Article 25 of the Universal Declaration of Human Rights (UDHR) where human right is associated with the right to food, housing, health, and gaining a living by working.35 It is, therefore, the duty of governments to take all necessary measures to protect this right including infringements from third parties such as companies. Local communities exercise the right to work and earn a living through the
engagement in farming and fishing as a means of sustenance and livelihood. The exercise of this right is impaired and livelihood impacted where oil spill pollutes their farmlands and rivers. Thus, violating their rights to gain a living by work and the right…